Davis v. State

• Decision Date: 07 October 1933
• Docket Number: 23240.
• Citation: 171 S.E. 401,47 Ga.App. 706
• Parties: DAVIS v. STATE.
• Court: Georgia Court of Appeals

171 S.E. 401

47 Ga.App. 706

DAVIS v. STATE.

No. 23240.

Court of Appeals of Georgia, First Division

October 7, 1933

Syllabus by the Court.

Where indictment charged robbery by force and robbery by intimidation in one count, and court instructed that state had abandoned charge of robbery by force, general verdict of guilty meant guilty of robbery by intimidation.

1. The evidence supports the verdict.

2. Where, in a trial on an indictment charging the offense of robbery by force and robbery by intimidation in one count the court instructs the jury, in effect, that the state has abandoned the charge of robbery by force, a general verdict of guilty will be construed as meaning guilty of robbery by intimidation.

3. There is no merit in the special grounds of the motion for a new trial.

Error from Superior Court, Fulton County; A. J. McDonald, Judge.

Foster Davis was convicted of robbery by intimidation, and he brings error.

Affirmed.

E. S Griffith and Carpenter & Ellis, all of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., J. Walter Le Craw, and John H. Hudson, all of Atlanta, for the State.

MacINTYRE Judge.

There was only one count in the indictment, which charged two grades of the offense of robbery, to wit, robbery by force and robbery by intimidation. Where the crime charged has two grades, a general verdict of guilty will be construed as finding the defendant guilty of the higher charge, and the proof should support a verdict for the higher grade. Rivers v. State, 46 Ga.App. 778, 779, 169 S.E. 260; Long v. State, 12 Ga. 293. However, in the instant case, the judge stated, in a note to the motion for a new trial, that "the only issue submitted by the court to the jury was whether or not the defendant was guilty of robbery by intimidation; the State adandoned robbery by force, and it was not submitted." The court, in effect instructed the jury that if they should find the defendant guilty, their verdict should be for robbery by intimidation with or wiithout a recommendation as for a misdemeanor. He further instructed the jury that the minimum and maximum punishment was from two to twenty years. The jury returned a verdict fixing the punishment at a maximum and minimum of two years, recommending that "this sentence be treated as a misdemeanor." The judge followed this recommendation. Under the facts stated above the general verdict of guilty will be construed as meaning...